Intersystemic Governance as the New Governance
posted by Robert Ahdieh
[A belated post, which I'm finally putting up, long after the final bell has tolled on my (enjoyable as ever!) visit...]
In a post a few weeks back, Mike Dorf cites ongoing debates over the appropriate place of Shari’a law within the British legal system, to highlight a broader phenomenon of interaction across legal regimes. As he constructs the settings of relevant interest:
A and B are interacting legal regimes, each claiming some authority to make binding norms for some of the same people; A claims that in case of clear conflict with B, A prevails; B claims that in cases of clear conflict, B prevails; although this looks like a recipe for eventual all-out conflict, A and B can co-exist indefinitely through a variety of mediating mechanisms.
At a certain level, this might be understood to describe the dynamic at work in any federal scheme of governance. As I see it, though, the critical question in these cases is how we think about patterns of overlapping authority across jurisdictional lines. In the conventional account of federalism – and perhaps the law generally – the motivating project might be seen as one of line-drawing. The law’s task is to demarcate distinct bounds of jurisdictional authority. In this way, it serves the purportedly salutary function of minimizing overlap, and therefore conflict. Dorf, by contrast, suggests the growing degree to which complexity, overlap, and conflict cannot be avoided. Rather, they must – and even should – be embraced.
As I have had occasion to describe the idea:
This [emerging] project lies not in line-drawing, distinguishing, or simplifying. To the contrary, it explores—and even encourages—overlap, interdependence, and attendant complexity. From this distinct regulatory perspective, the goal is not to identify the single regulatory actor best suited or most appropriately charged with responsibility for a given entity or subject matter. Rather, multiple regulators are embraced as having a shared—if both competing and cooperating—place in a more inclusive and all encompassing regulatory regime.
In emphasizing the growing importance of such patterns of interaction, I have been struck by the wide range of recent work that speaks – directly or indirectly – to such dynamics of engagement across regulatory regimes. This is evident, from even a cursory (and incomplete) listing of relevant work:
Among the most notable thinkers in this area has been Paul Berman, whose application of the framework of legal pluralism to these questions – particularly in transnational settings where he has identified patterns of “cosmopolitan pluralism” – has been equally striking for both its breadth and its depth.
Others writing on such interactions in the transnational sphere have included Alex Aleinikoff, George Bermann, Grainne de Burca, Vicki Jackson, Ben Kingsbury, Joanne Scott, Anne-Marie Slaughter, and others. My work in this area, meanwhile, has identified distinct patterns of engagement of international tribunals with domestic courts, has explored the interaction of national and transnational regulatory institutions, and has considered the implications of growing state and local engagement with foreign affairs and international law for how we understand the relationship of sub-national, national, and international institutions.
The environmental law literature has been similarly rich, with relevant work by Bill Buzbee, Kirsten Engel, Brad Karkkainen, and Hari Osofsky, among others. In constitutional law, meanwhile, suggestive work has been penned by Judith Resnik, Mark Rosen, and Robert Schapiro.
Finally, in another area of interest to me, relevant corporate and securities analysis has been done by Renee Jones, Mark Roe, and Bob Thompson, among others. In this sphere, relevant interests of my own have included the Securities and Exchange Commission’s interactions with both sub-national authorities (e.g., then-Attorney General Eliot Spitzer) and international institutions (e.g., the International Accounting Standards Board), the implications of the Sarbanes-Oxley Act for state corporate law, and the SEC’s engagement with state corporate lawmakers under SEC Rule 14a-8.
With an eye to creating an institutional framework for this diverse and growing literature, meanwhile, Bill Buzbee (environmental and administrative law), Robert Schapiro (constitutional and federal courts law), and I (international and corporate/securities law) have recently established a new Center on Federalism and Intersystemic Governance at Emory Law School. Over the coming years, it is our hope that the Center can provide support and encouragement for further development of both positive and normative accounts of the patterns of cross-jurisdictional interaction described above – patterns we have variously explored as intersystemic adjudication, dialectical regulation, mixed governance, polyphonic federalism, and intersystemic governance.
With the changing nature of jurisdiction – driven by the internet, the telecommunications revolution, ease of travel, and patterns of globalization generally – incidents of intersystemic governance, from application of the Shari’a in Britain to transnational regulation of what can be sold on eBay, can only be expected to increase. Scholars writing on these questions, even across widely divergent fields, may do well to more closely engage one another, in hopes of achieving a better understanding of this important phenomenon.
December 16, 2008 at 9:37 am
Posted in: Administrative Law
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